In an opinion issued this morning, the Second Circuit has allowed Bobette Morin's lawsuit against judges and court personnel in Ononganda County, New York to go forward.

In Morin v. Tormey, Morin, the Chief Clerk of Ononganda County Family Court since 1994, had alleged in her original complaint that:

In the summer of 2002, Voninski, then Executive Assistant to District Administrative Judge Tormey, escorted Morin to Tormey’s chambers. Tormey greeted Morin with a kiss and a hug and commended her for the “great job” she was doing. Tormey then told Morin that [County Family Court] Judge David G. Klim was running for State Supreme Court Justice on the Democratic ticket against “good Republican friends of mine” and asked Morin if she “was a good Republican” and whether she “wanted to be a ‘team player.’” Tormey and Voninski demanded that Morin “provide negative information about Judge Klim with respect to his upcoming judicial election for Supreme Court” and “ordered [her] to ‘dish dirt’ on Judge Klim.” They requested her “to monitor Judge Klim’s activities and to report his ‘comings and goings.’” Morin replied that it was not her position “to spy on judges during a judicial election” and that “it was repeatedly emphasized to me that I was not to engage in political activity involving the courts.” She added that her only monitoring task was to maintain a list of each judge’s cases that were approaching the 180-day deadline for disposing of cases. Hearing her response, Tormey and Voninski “became visibly angry,” and Tormey “directed [her] to ‘get out of [his] office!’”.

She alleged that she was thereafter subject to various adverse employment actions, including a reassignment to an office requiring a four hour commute and a demotion from Chief Clerk.

The judges and court personnel raised a qualified immunity defense, appealing from the district judge's denial of their motion for summary judgment.

The Second Circuit's discussion squarely confronted the First Amendment issues. First, the Second Circuit made clear that Morrin's claim is her "First Amendment right not to be pressed into participating in partisan political activities." (emphasis added). The court stated that such a right "draws its decisional basis not from the Garcetti/Connick/Pickering trilogy," as the Defendants had claimed, but from decisions such as Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), Branti v. Finkel, 445 U.S. 507 (1980), and Elrod v. Burns, 427 U.S. 347 (1976). "In short, the issue in this case is whether the Plaintiff could be retaliated against based on her political affiliation (or non-affiliation), not whether she could be retaliated against based on any protected speech."

Second, the court found that Morin did not fit into the policymaker exception to the Elrod/Branti/Rutan trilogy. While she did not have civil service protection, she "is not authorized to speak in the name of the Defendants or other policymakers, cannot reasonably be perceived as a policymaker, does not influence government programs, and is not responsive to partisan politics," and indeed, is prohibited by New York statute from engaging in political activities during working hours.

Thus, the case is less about judicial immunity than about the First Amendment rights of government, including judicial, employees. The opinion is a brief 15 pages with sufficient facts and involving a choice between doctrinal "lines," so it would be a great basis for a class exercise.

RR

(h/t Nate Treadwell) [image of map of Onondaga county in New York via].